Eskom: So many red flags it's hard to know where to start

Date Released: Wed, 14 June 2017 09:44 +0200

South Africa’s state owned enterprises have been hit by one scandal after another signalling serious political and corporate governance failures. The largest of these, the power utility Eskom, has seen its CEO Brian Molefe resign, then return, and then be fired – all in the space of seven months. This was followed by the unexpected resignation of Eskom Chairperson Ben Ngubane. The Conversation Africa’s Sibonelo Radebe asked Owen Skae to make sense of it all.

What do you make of what’s happening at Eskom?

It’s an unholy mess. The entire basis of the departure, reappointment and subsequent firing of the Eskom CEO raises so many red flags it’s hard to know where to start. And, to cap it all, the chairman has resigned with immediate effect. That means Eskom is without a CEO and now has a stand-in chairperson.

One thing is clear. The board, the chairperson Ben Ngubane, the minister of public enterprises Lynne Brown, and Molefe failed in their duties to serve Eskom. They failed South Africa’s taxpayers who are the indirect shareholders of Eskom. And they failed the country.

To understand their duties, one has to consider the basic principles of governing state owned enterprises. Eskom is a public company and its sole shareholder is the government. The shareholder representative is the ministry of public enterprises. A shareholder compact guides the relationship between the board, the executives and the minister.

The shareholder compact is an annual agreement between Eskom’s leadership and the minister. It documents the power utility’s mandate, as well as key performance measures. It also sets out what’s expected from a good governance perspective. It’s meant to avoid the kind of mess that has visited Eskom over the past few months.

What went wrong?

A number of things.

The main one is that corporate governance rules designed to manage conflicts of interest were totally disregarded.

The country’s Companies Act spells out what a director may or may not do if they have a personal financial interest in a matter. These rules apply as much to state owned enterprises as they do to publicly listed ones. The Eskom situation suggests that directors, and Molefe in particular, disregarded this principle.

This is highlighted in the former public protector Thuli Madonsela’s “State of Capture” report which suggested that Molefe had had an improper relationship with the Guptas, a family of businessmen with close ties to President Jacob Zuma. Among other things, the report questioned the way in which the Eskom leaders collaborated with the Guptas to buy, some say hijack, a mine supplying power utility with coal.

The Eskom board and the minister also failed to apply their minds properly around Molefe’s controversial departure and return. This includes a deal to give him a pension payout of R30 million just 18 months in the job and 13 years before he is due to reach retirement age.

A good understanding of the act, as well as the codes of good corporate governance that have been developed in the country, make it clear that the board should have:

called a special meeting to consider Molefe’s departure

applied its mind to the circumstances of his departure

ensured that the necessary legal, risk and reputation issues were addressed.

Another big area of failure was the role of the board’s chairperson. Even though he has resigned, he should still be held accountable for not providing the necessary oversight at such a momentous time.

As the only shareholder, the government is also complicit. As the shareholder representative the minister of public enterprises had the responsibility of asking the board questions as part of a consultative process that’s set out in the shareholder compact.

Either the minister wasn’t properly informed or didn’t ask the questions she was entitled to ask, or a mixture of both. This raises red flags about her level of commitment to the shareholder compact.

What does it tell us about the broader political environment?

There’s just too much interference – for nefarious reasons – from outsiders in the running of state owned enterprises. Excessive power and authority is vested in too few people. I often use the analogy of being a sports coach. Imagine a situation where the coach is called to account for his actions every day, where he has no say in who is picked and is told to change the game plan. The situation becomes unmanageable.

Interference undermines the way things should be, erodes confidence and allows conflicts of interest to flourish. This is particularly true when the interference is from people who aren’t acting in the best interests of the team.

But being untouchable is also a recipe for disaster. So we have to find a middle ground. The rules of the game must be established and the parties must carry them out with integrity, competence, responsibility, accountability, fairness and transparency.

These rules of the game are clearly set out in the South African context. Nobody can claim they don’t know what they are. In the case of Eskom they’ve simply been flouted.

What do the events at Eskom tell us about state owned enterprises in South Africa?

Sadly, state owned enterprises are seen as instruments to serve an elite few rather than fulfilling their broader mandate.

On top of this they aren’t financially viable which means they’ll continue to be a drain on the fiscus. The government must consider partnerships with the private sector. This can be done by selling minority stakes as suggested by former finance minister Pravin Gordhan.

The success of the partly privatised telecommunications entity Telkom supports this view. The company has just posted handsome profits, suggesting it’s a model that could be used to turn around other state owned enterprises, including Eskom.